Citation: R v JT; R v AF [2024] NSWDC 27
Court: District Court of New South Wales
Date: 13 February 2024
Judge(s): Grant DCJ
Background
Three co-offenders, BP, JT, and AF, faced sentencing before Grant DCJ. BP had already been sentenced in September 2023, with the judgment published and provided to the legal representatives of JT and AF. JT later pleaded guilty and was awaiting sentence; AF ultimately pleaded guilty on 11 December 2023 after a fresh indictment was filed on the trial date.
Prior to the sentence hearings for JT and AF, the Director of Public Prosecutions lodged a complaint with the Judicial Commission and directed Crown staff to apply for the judge's recusal. The Director's position was that a fair-minded lay observer might reasonably apprehend that the judge would not bring an impartial mind to sentencing AF and JT.
The Crown Prosecutor formally applied for recusal at the sentence hearing on 13 February 2024. Notably, neither AF's nor JT's own legal representatives supported the application. Both defence counsel opposed it and sought the sentencing hearings to proceed.
Legal Issues
- Whether the provision of sentencing remarks from BP's matter to the legal representatives of JT and AF gave rise to a reasonable apprehension of bias
- Whether emails sent by the judge's associate to AF's representatives about the future of the trial constituted prejudgment of the sentence
- Whether the Crown had articulated a sufficient logical connection between the identified matters and any feared deviation from deciding the cases on their merits
- Whether a judge who has sentenced one co-offender is thereby disqualified from sentencing the remaining co-offenders
Decision
Issue 1: The applicable test
The court applied the well-established two-step test from Ebner v Official Trustee in Bankruptcy and Johnson v Johnson. First, the applicant must identify what might lead the judge to decide a case other than on its legal and factual merits. Second, there must be a logical connection between that matter and the feared deviation from deciding on the merits (at [11]-[14]). The test is objective, assessed from the perspective of a fair-minded lay observer, and does not require proof of actual bias (at [12]).
Issue 2: Provision of sentencing remarks to JT's representatives
The court found that providing the BP judgment to JT's solicitor was simply a matter of disclosure, one the Crown was obligated to fulfil regardless of whether it had been requested (at [18], [25]). The court found no logical connection between that provision and any feared deviation from deciding JT's sentence on its merits. The matter remained a blank canvas, with no materials yet tendered and no views expressed about an appropriate sentence for JT (at [29]).
Issue 3: Emails to AF's representatives
The court found that the emails sent to AF's legal team were an exercise in ordinary case management, directed at determining what to do with the jury panel and whether a 2024 trial could be brought forward (at [19]). The court had expressed no views about the outcome of any trial or sentence for AF, and knew nothing of AF's case beyond the face of the indictment (at [34]). The Crown was unable to articulate the required logical connection between the emails and any feared partiality (at [36]).
Issue 4: Whether sentencing one co-offender disqualifies a judge from sentencing the others
The court rejected outright the proposition that a judge must recuse from sentencing co-offenders simply because that judge sentenced another co-offender in the same matter (at [26]). The court noted that it is highly desirable, as a matter of practice, for co-offenders to be sentenced by the same judge to allow proper application of the parity principle (at [10]). In any event, the court characterised the Crown's true motive, which emerged during oral submissions, as dissatisfaction with the leniency of the BP sentence and a desire to secure a different judge for the remaining sentencings (at [16], [37]). The court described this as a blatant attempt at judge shopping that brings the administration of justice into disrepute (at [16], [38]).
Orders Made
- The application for recusal is refused.
Key Takeaways
- A recusal application based on apprehended bias requires two distinct steps: identifying what might cause the judge to depart from deciding on the merits, and articulating the logical connection between that matter and the feared deviation. Failure to satisfy either step is fatal to the application (at [13]-[14]).
- Provision of published sentencing remarks to a co-accused's legal representatives, whether at the request of those representatives or as a matter of disclosure, does not of itself found a reasonable apprehension of bias (at [25]).
- Active judicial case management, including inquiries about jury panels and trial scheduling, does not constitute prejudgment and will not ordinarily ground an apprehended bias application (at [19], [35]).
- The District Court confirmed that it is highly desirable for co-offenders to be sentenced by the same judge, so that the parity principle can be properly applied, and that requiring recusal after sentencing one co-offender would be illogical (at [10], [26]).
- Where it emerges during submissions that a recusal application is motivated by dissatisfaction with a prior sentence rather than genuine apprehension of bias, a court may characterise the application as judge shopping and refuse it accordingly (at [16], [38]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337;
- Gaudie v Local Court of New South Wales [NSW] 2013 NSWSC 1425 at [82];
- Green v The Queen (2011) 244 CLR 462;
- Johnson v Johnson (2000) 201 CLR 488;
- Michael Wilson and Partners v Nicholls (2011) 244 CLR 42;
- Postiglione v The Queen (1997) 189 CLR 295;
- R v BP [2023] NSWDC 415.